Opinion
December 22, 1995
Appeal from the Allegany County Court, Sprague, J.
Present — Denman, P.J., Green, Fallon, Doerr and Boehm, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment after a jury trial convicting her of manslaughter in the second degree (Penal Law § 125.15). We conclude that the evidence, when viewed most favorably to the People (see, People v Thompson, 72 N.Y.2d 410, 413, rearg denied 73 N.Y.2d 870; People v Ford, 66 N.Y.2d 428, 437), is sufficient to justify the conclusion of the jury that defendant recklessly caused the death of her nephew (see, People v Johnstone, 145 A.D.2d 902, lv denied 73 N.Y.2d 979; People v Osburn, 124 A.D.2d 1048, lv denied 69 N.Y.2d 831). Defendant's contention that the moral certainty test applicable to circumstantial evidence cases should have been applied by the court is unpreserved for our review (see, CPL 470.05). In any event, the prosecution's case did not depend entirely upon circumstantial evidence (see, People v Barnes, 50 N.Y.2d 375, 379-380). From our examination of the record, we conclude that the sentence is neither unduly harsh nor severe.